B-148854, MAY 29, 1962

B-148854: May 29, 1962

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JACK L SHELTON: REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 9. OF THE ARMED FORCES WERE CONSIDERED UNDER THE ACT TO BE ENTITLED TO SUCH LEAVE FROM AND AFTER SEPTEMBER 8. AT THE TIME YOUR CLAIM WAS FIRST CONSIDERED. IT APPEARED THAT YOU WERE CLAIMING COMPENSATION FOR TERMINAL LEAVE UPON DISCHARGE IN 1945. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT IT APPEARED YOU DID NOT MAKE APPLICATION FOR PAYMENT OF SUCH TERMINAL LEAVE PRIOR TO JULY 1. CONSIDERATION OF YOUR CLAIM WAS THEREFORE PRECLUDED UNDER THE PROVISIONS OF SECTION 5 (A) OF THE ACT. YOU BELIEVE YOU ARE "STILL ELIGIBLE FOR PAYMENT FOR UNUSED LEAVE TIME DURING THE WAR.'. IT NOW APPEARS THAT THE LEAVE FOR WHICH YOU BELIEVE YOU WERE NOT PAID IS THE AMOUNT OF LEAVE YOU HAD TO YOUR CREDIT ON AUGUST 31.

B-148854, MAY 29, 1962

TO MR. JACK L SHELTON:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 9, 1962, REQUESTING REVIEW OF SETTLEMENT DATED DECEMBER 1, 1961, WHICH DISALLOWED YOUR CLAIM FOR UNUSED ACCUMULATED LEAVE FOR THE PERIOD AUGUST 16, 1939, UNTIL THE END OF WORLD WAR II IN 1945, INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY.

PRIOR TO THE PASSAGE OF THE ARMED FORCES LEAVE ACT OF 1946, APPROVED AUGUST 9, 1946, 60 STAT. 963, NO PROVISION OF LAW EXISTED UNDER WHICH ENLISTED MEMBERS OF THE ARMED FORCES MIGHT BE COMPENSATED FOR UNUSED LEAVE OR FURLOUGH TIME UPON DISCHARGE OR RELIEF FROM ACTIVE DUTY. THE 1946 ACT GRANTED EQUAL TREATMENT TO OFFICERS AND ENLISTED MEMBERS OF THE ARMED FORCES IN THE MATTER OF LEAVE AND GRANTED EACH MEMBER OF THE ARMED FORCES LEAVE AT THE RATE OF 2 1/2 CALENDAR DAYS FOR EACH MONTH OF ACTIVE SERVICE. ENLISTED MEMBERS, OR FORMER ENLISTED MEMBERS, OF THE ARMED FORCES WERE CONSIDERED UNDER THE ACT TO BE ENTITLED TO SUCH LEAVE FROM AND AFTER SEPTEMBER 8, 1939, AND THE ACT PROVIDED THAT IN THE CASE OF AN ENLISTED MEMBER ON ACTIVE DUTY ON SEPTEMBER 1, 1946, SUCH LEAVE SHOULD BE SETTLED AND COMPENSATED FOR UNDER THE METHOD PROVIDED IN SECTION 6 OF THE ACT (IN CASH OR IN BONDS OF THE UNITED STATES).

AT THE TIME YOUR CLAIM WAS FIRST CONSIDERED, IT APPEARED THAT YOU WERE CLAIMING COMPENSATION FOR TERMINAL LEAVE UPON DISCHARGE IN 1945, AND YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT IT APPEARED YOU DID NOT MAKE APPLICATION FOR PAYMENT OF SUCH TERMINAL LEAVE PRIOR TO JULY 1, 1951, AND CONSIDERATION OF YOUR CLAIM WAS THEREFORE PRECLUDED UNDER THE PROVISIONS OF SECTION 5 (A) OF THE ACT, AS AMENDED. IN YOUR LETTER OF FEBRUARY 9, 1962, YOU CALLED ATTENTION TO THE FACT THAT YOU REMAINED IN THE SERVICE UNTIL YOUR RETIREMENT ON NOVEMBER 30, 1959, AND FOR THIS REASON, YOU BELIEVE YOU ARE "STILL ELIGIBLE FOR PAYMENT FOR UNUSED LEAVE TIME DURING THE WAR.'

THE RECORDS OF THIS OFFICE NOW DISCLOSE THAT YOU SERVED IN THE ARMED FORCES FROM AUGUST 16, 1939, DATE OF YOUR ENLISTMENT IN THE REGULAR ARMY, UNTIL NOVEMBER 30, 1959, DATE OF YOUR RETIREMENT FROM THE REGULAR AIR FORCE. THUS, IT NOW APPEARS THAT THE LEAVE FOR WHICH YOU BELIEVE YOU WERE NOT PAID IS THE AMOUNT OF LEAVE YOU HAD TO YOUR CREDIT ON AUGUST 31, 1946, IN EXCESS OF 60 DAYS FOR WHICH COMPENSATION WAS AUTHORIZED TO MEMBERS ON ACTIVE DUTY ON SEPTEMBER 1, 1946, BY SECTION 5 (B) OF THE 1946 ACT, WHICH PROVIDED AS FOLLOWS:

"IN ANY CASE IN WHICH A MEMBER OF THE ARMED FORCES ON ACTIVE DUTY ON SEPTEMBER 1, 1946 (OTHER THAN A MEMBER ON TERMINAL LEAVE ON SUCH DATE) HAS TO HIS CREDIT ON AUGUST 31, 1946, ACCUMULATED OR ACCRUED LEAVE AGGREGATING IN EXCESS OF SIXTY DAYS, SUCH LEAVE IN EXCESS OF SIXTY DAYS SHALL BE SETTLED AND COMPENSATED FOR ONLY IN THE MANNER PROVIDED IN SECTION 6 OF THIS ACT AND IF APPLICATION IS MADE TO THE SECRETARY NOT LATER THAN SEPTEMBER 1, 1947.'

THE TERMINAL DATE FOR FILING APPLICATIONS WITH THE APPROPRIATE DEPARTMENT WAS EXTENDED TO JUNE 30, 1951, BY THE ACT OF APRIL 26, 1950, 64 STAT. 88. NO FURTHER EXTENSIONS WERE MADE, AND SINCE THERE IS NO RECORD IN THIS OFFICE SHOWING THAT YOU FILED A TIMELY APPLICATION UNDER THE STATUTE, IT MUST BE ASSUMED EITHER THAT APPLICATION WAS MADE WITHIN THE PERIOD ALLOWED FOR FILING CLAIMS AND YOU WERE PROPERLY COMPENSATED FOR YOUR ACCUMULATED AND ACCRUED LEAVE IN EXCESS OF 60 DAYS, OR THAT, IF APPLICATION WAS NOT MADE IN TIME, NO CONSIDERATION WAS GIVEN YOUR CLAIM BY THE DEPARTMENT CONCERNED BECAUSE OF THE RESTRICTION AGAINST LATE FILING CONTAINED IN THE STATUTE UNDER WHICH THE BENEFIT WAS PROVIDED.

WE REGRET THAT A FAVORABLE REPLY CANNOT BE MADE IN YOUR CASE, BUT TRUST THAT YOU WILL UNDERSTAND THAT FURTHER CONSIDERATION OF YOUR CLAIM BY EITHER THE MILITARY ESTABLISHMENT CONCERNED OR THIS OFFICE IS PROHIBITED BY LAW.